Breach of Contract or Tort? Does it Matter?

The professional-client relationship often begins with a retainer agreement/engagement letter: a contract that defines the terms and scope of professional services. Accordingly, when a client files suit alleging professional malpractice, the claims will generally sound in both contract and tort.  Whether a claim is asserted as a breach of contract or tort can have important implications with regard to the statute of limitations and other potential defenses. For instance, depending on the state, a tort claim may be time-barred where a breach of contract claim is not.

Certain jurisdictions, however, have questioned whether a breach of contract claim may proceed where the alleged malpractice does not directly relate to a violation of a specific term of the professional-client engagement. For instance, in a recent case from Philadelphia, a judge ruled that a plaintiff could not recover in a suit against her divorce attorneys because the lawsuit was filed after the statute of limitations for a tort claim. Importantly, the court concluded that the plaintiff did not adequately plead breach of contract, notwithstanding that the statute of limitations for breach of contract had not yet run. The judge rejected the plaintiff’s argument that the claim could proceed as a breach of contract, finding that the defendant’s failure to file a motion on behalf of the plaintiff in the underlying proceedings sounded in tort only.

Attorneys should not simply assume that breach of contract applies in all PL circumstances.  Thus, while a malpractice lawsuit may include a claim for breach of contract, counsel should never delay in filing suit where the statute of limitations on tort claims could expire and defense counsel should be wary of potential defenses.


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